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Irizarry v. City of Hoboken

April 28, 2009

AMALIA IRIZARRY, PLAINTIFF-APPELLANT,
v.
THE CITY OF HOBOKEN, THE HOBOKEN HOUSING AUTHORITY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-768-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2009

Before Judges Gilroy and Chambers.

Plaintiff Amalia Irizarry appeals from the order of May 23, 2008, granting summary judgment to defendant the Hoboken Housing Authority on the basis that plaintiff's claim fails to meet the tort claims threshold set forth in N.J.S.A. 59:9-2. We affirm for substantially the reasons set forth by the trial judge.

On July 19, 2005, plaintiff fell over a bucket left in the hallway by a maintenance worker in the building where she lives. She brought this personal injury action, seeking compensation for the injuries she sustained in the fall. She named as a defendant the Hoboken Housing Authority, the owner of the premises where she fell.

Since defendant is a public entity, plaintiff must meet the tort claims threshold set forth in the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, in order to recover damages from defendant for pain and suffering. That statute provides in pertinent part:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.

[N.J.S.A. 59:9-2.]

To establish a permanent loss of a bodily function, plaintiff must prove (1) the existence of a permanent injury by objective medical evidence, and (2) the "permanent loss of a bodily function that is substantial." Gilhooley v. County of Union, 164 N.J. 533, 541 (2000) (citing Brooks v. Odom, 150 N.J. 395, 402-06 (1997)).

The trial court granted defendant's motion for summary judgment, finding that plaintiff's injuries failed to meet the tort claims threshold. Plaintiff appeals that decision, arguing that she sustained in the accident a substantial and permanent loss of functioning in her right wrist and back and a substantial disfigurement of her right wrist within the meaning of the Tort Claims Act.

In reviewing an appeal from a decision on a motion for summary judgment, we employ the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). When determining whether a material fact is present, we must look at the competent evidence "in the light most favorable to the non-moving party" and determine whether that evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If the evidence is sufficient to meet that standard, the motion will be denied.

Accordingly, in our review, we look at the evidence from the perspective most favorable to plaintiff. Plaintiff's proofs indicate that the injuries she sustained in the accident included a distal radial fracture of her right wrist and aggravation of pre-existing lumbar disc herniations at L4-L5 and L5-S1. Plaintiff contends that her wrist fracture and the aggravation of her disc herniations at L4-L5 and L5-S1 have caused a permanent loss of bodily functions within the meaning of the tort claims threshold. She also maintains that the wrist fracture has resulted in a permanent disfigurement that also meets the tort claims threshold.

With respect to the wrist fracture, plaintiff was placed in a cast for six weeks, and she thereafter underwent physical therapy until November 2005. Her doctor, Frank Rotella, D.O., indicated that at the time of discharge, she continued to have discomfort in the wrist; that due to the pain in the wrist, she had some difficulty in performing certain activities; and that the ...


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